Reserved
Court No. - 78
Case :- CRIMINAL APPEAL No. - 2880 of 2020
Appellant :- Rahul @ Moni
Respondent :- State of U.P.
Counsel for Appellant :- Hemant Sharma
Counsel for Respondent :- G.A.
Hon'ble Naveen Srivastava,J.
1. Heard Sri Hemant Sharma, learned counsel for the appellant, learned A.G.A. for the State and perused the record.
2. Learned counsel for the appellant at the very out set has submitted that he will not argue on bail, but he will argue on the merits of appeal and he will confine his argument to the quantum of sentence.
3. By the judgment and order dated 06.10.2020 passed by learned Additional District and Sessions Judge, Court No. 3, Bulandshahr, the accused-appellant has been convicted in S.T. No. 140 of 2015, arising out of Case Crime No. 370 of 2014, P.S. Gulawati, District Bulandshahr for the offence under sections 394, 411 and 307 IPC, for eight years rigorous imprisonment and fine of Rs.12,000/- and in default of payment of fine further five months additional imprisonment and Session Trial No. 141 of 2015 arising out of Case Crime No. 372 of 2014, under Section 25 Arms Act, Police Station Gulawati, District Bulandshahr, for two years rigorous imprisonment and fine of Rs. 2,000/- and in default of payment of fine further one month additional imprisonment.
4. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:-
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante- social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
5. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
6. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
7. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
8. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.
9. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
10. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.
11. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
12. Learned counsel for the accused-appellant has submitted that accused-appellant is in jail since 06.10.2020 and a such he has already passed about five years, one month and fifteen days in jail. It has also been submitted that considering the said period of almost five years, one month and fifteen days in jail, the sentence may be converted to undergone.
13. Per contra, learned A.G.A. has submitted that accused- appellant has been rightly convicted for the offence after appreciating evidence available on record, hence sentenced awarded by the learned trial court is adequate and no sympathy should be given to the accused-appellant.
14. Considering the submissions of learned counsel for the accused-appellant and also considering the fact that accused appellant has already passed almost five years, one month and fifteen days in jail, in my opinion the ends of justice would be met if the custodial sentence of six years rigorous imprisonment of the accused under Section 307/34, 394 IPC is reduced to the period already undergone, without reducing the amout of fine imposed by the trial Court upon the accused- appellant.
15. Accordingly, conviction is upheld. The appeal is finally
disposed of with the modification that sentence under Section
307/34, 394 IPC is reduced to the period already undergone. The fine imposed by court below appears to be adequate and sentence of fine is maintained.
16. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance.
Order Date :- 17.9.2021 SK Srivastava